Category: Medical Benefits

G.K. v Coseco Insurance (18-007434)

The claimant disputed her MIG determination and sought entitlement to various medical/rehabilitation benefits and income replacement benefits. Adjudicator Hans concluded that the claimant’s injuries did not fall within the MIG, as the medical evidence established that she suffered from chronic pain syndrome that was not merely a sequelae of the soft tissue injuries sustained in the accident, and which caused functional limitations and impacted the claimant’s activities of daily living. Adjudicator Hans further concluded that the claimant met the eligibility test for income replacement benefits. He noted that the claimant provided convincing evidence regarding how her impairments specifically affected her functionality and her ability to perform the essential tasks of her employment, while the insurer’s IE assessor did not undertake a sufficient analysis of the essential tasks of her employment before coming to a conclusion.

A.J. v The Guarantee Company of North America (19-001321)

The claimant sought entitlement to income replacement benefits and physiotherapy treatment, while the insurer sought a repayment of IRBs which it claimed were wrongly paid to the claimant at the outset of the claim. The insurer relied on an orthopaedic IE report to justify its termination of IRBs. Adjudicator Grant placed little weight on the report, noting that it was flawed in that it did not comment on any testing that would have reflected the claimant’s workload demands, which were described as including operating heavy machinery and heavy lifting duties. Adjudicator Grant accepted the claimant’s evidence that she had attempted to return to both her full-time and part-time pre-accident employment, but had not been able to do so, and found that she was entitled to pre-104 week IRBs. However, he went on to find that she had not provided evidence to support that she met the more stringent post-104 week entitlement test. Adjudicator Grant also held that the claimant was liable to repay the IRBs as requested by the insurer for amounts paid while the claimant was being paid income for modified work, as the repayment request was sent within the required time period and clearly set out the amount to be repaid. Finally, Adjudicator Grant concluded that the claimant was entitled to the physiotherapy treatment plan, as her pain reports were consistent, credible, and ongoing since the accident, and the evidence supported that treatment had proven beneficial.

D.Y. v. Aviva General Insurance Company (18-011171)

The claimant sought entitlement to NEBs, medical treatment, various assessments, and a special award. In addition, the claimant sought entitlement to the balance of proposed catastrophic impairment assessments, which had been proposed in the amount of $26,400.00 and approved up to $12,400.00. The claimant was found entitled to NEBs, chiropractic and physiotherapy treatment, concussion management, and various s. 25 assessments up to $2,000.00 limit. Adjudicator Conway approved a second portion of a neuropsychological assessment, but denied the claim for additional CAT assessments because they were duplicative or for review of medical records (which is included in the $2,000 limit). The claimant was found entitled to interest if the cost of treatment had been incurred. Interest was found payable from the date payment was made by the applicant until the date of payment by the insurer. A special award of 33 percent was made due to the insurer not approving medical benefits when it had sufficient evidence that the claimant suffered from chronic pain and psychological injuries.

F.E. v. Intact Insurance Company (18-011405)

The claimant sought entitlement to IRBs, various medical benefits, and two assessments. The insurer brought motions for section 33 non-compliance for failure to provide records in the Case Conference Order, and a section 55 defence for IE non-attendance. Both motions were dismissed. Section 33 was not found to apply because the claimant’s breach was of the LAT Rules as opposed to a section 33 request. The section 55 defence was dismissed because of the insurer’s failure to provide notice of the issue. Adjudicator Paluch concluded that the claimant was not entitled to IRBs because he failed to provide evidence necessary to establish either a substantial or complete inability to perform the essential tasks of his employment, and there was evidence that he returned to work following the accident. The medical benefits and assessments were also dismissed due to the claimant’s lack of evidence and poor credibility.

H.S.H. v. Aviva Insurance Company of Canada (18-002204)

The claimant sought reconsideration of the Tribunal’s denial of the cost of a catastrophic impairment assessment, arguing that the burden should not be on the claimant and that the “reasonable and necessary” test did not apply to section 25. Adjudicator Reilly dismissed the reconsideration request, holding that the “reasonable and necessary” test applied to each catastrophic impairment assessment, and that the burden was on the claimant to prove that the test was satisfied.

A.G. v. Aviva Insurance Canada (19-001973)

The claimant sought a special award in relation to the cost for medical cannabis. The insurer had requested information from the claimant regarding the costs for the medical cannabis in order to consider payment. The claimant responded, but only provided some of the information requested by the insurer. Adjudicator Parish noted the insurer should have identified all the specific required information in order to obtain funding for the cannabis in its initial request for information in the OCF-9 of November 2, 2018. Adjudicator Parish further indicated that although, the insurer subsequently sent a letter dated December 17, 2018 that reiterated the same information that was required, it did not equate to the insurer unreasonably withholding or delaying payments to the claimant. On December 21, 2018, the insurer sent a new letter that clearly outlined the specific information that was required for payment of the costs of the cannabis. Since the insurer paid the costs within 30 days of receiving the requested information, Adjudicator Parish found that there was no delay in the chronology of events in the insurer’s response for the claim.

M.M. v. Aviva Insurance Canada (17-006475)

The claimant sought entitlement to IRBs, various medical benefits, educational expenses, and an accounting report. Adjudicator Boyce found that the claimant was not entitled to payment of IRBs as claimed as she did not demonstrate a substantial inability to perform the essential tasks of her pre-accident employment for the period in dispute. Adjudicator Boyce had noted inconsistencies in the claimant’s IRB claim about her ability to complete her essential pre-accident employment tasks and that the claimant was able to return to work. The surveillance evidence was found to show the claimant doing many routine work tasks that contradicted her claim she was unable to work. She also claimed the cost of the accounting report she completed to calculate her IRB quantum, which was determined to be not payable because it was not an identified issue in dispute. The claimant was found to be entitled to payment for physiotherapy treatment and dental expenses including interest as they were considered to be reasonable and necessary. Further, the claimant was not entitled to the education expenses claimed as there was no evidence to support that she was unable to complete her course as a result of the accident. No special award was granted as there was no indication that Aviva unreasonably withheld or delayed payment of benefits where there was also a genuine dispute over entitlement.

A.P. v. Aviva Insurance Canada(18-007997)

The claimant sought entitlement to NEBs, medical benefits proposed in three treatment plans, and the cost of examination expense for an orthopaedic assessment. Adjudicator Grieves concluded that the claimant was not entitled to NEBs as the claimant failed to prove that he suffered a complete inability to carry on a normal life. Adjudicator Grieves found that all disputed medical benefits proposed in the three treatment plans were reasonable and necessary, and disagreed with s. 44 IE conclusions that the claimant had reached maximal recovery. Lastly, Adjudicator Grieves also found the cost of examination expense for an orthopaedic assessment was reasonable as it was related to the assessment of accident-related injuries.

R.B. v. RSA Insurance (19-002329)

The claimant sought entitlement to four treatment plans for medical rehabilitation and cost of examinations, including a catastrophic impairment assessment and medications. The insurer denied the benefits in dispute on the basis that the claimant’s medical limits had been exhausted. Adjudicator Kaur concluded that that cost of examination for a catastrophic assessment are not subject to the medical benefits limitation. The claimant was entitled to the catastrophic impairment assessments, but the remainder of the medical benefits were denied as there was no evidence on a balance of probabilities that the expenses were reasonable or necessary.

M.S. v. Aviva General Insurance Company (18-007082)

The claimant sought entitlement to four treatment plans for medical rehabilitation and cost of examinations, including chiropractic treatment, concussive therapy, and optometric services. Vice-Chair McQuaid found that the proposed treatments were not payable. In her decision, she noted that, although, she gave more weight to the evidence provided by the claimant’s family physician and treating practitioners over the IE assessors, the records and evidence provided by the claimant did not contain any recommendations by the family physician for any of the disputed treatment plans for physical therapy. The remaining treatments for optometric services were denied as the claimant had pre-existing cataracts, which were not caused by the subject accident, and the medical records indicated that, although concussive symptoms were present, that they had fully resolved by the time the concussive therapy was proposed.